ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :JENKINS DCJ
Citation  :BARWICK -v- DEN HOEDT & ANOR [2004] WADC 10
File No  :CIV 1915 of 2001

Catchwords:

Appeal - Costs - Injuries arising from two separate accidents - Defendants jointly offered a single amount in settlement which exceeded the total amount of damages awarded against defendants - O 24A r 9 Rules of the Supreme Court 1971 (WA) does not apply to a joint offer where defendants are severally, but not jointly or jointly and severally, liable - Whether Judge should have taken defendants' offer into account in exercise of general discretionary power to award costs - Where defendants did not request Judge to exercise general discretionary power

Crossappeal - Assessment of damages for personal injuries - Whether certain findings of fact were reasonably open on the evidence - Award for nonpecuniary damages - Section 3C(2) Motor Vehicle (Third Party Insurance) Act 1943 (WA) - Meaning of "a most extreme case" - Section 3C(3) Motor Vehicle (Third Party Insurance) Act 1943 (WA)

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C
Rules of the Supreme Court 1971 (WA), O 24A, O 66 r 1

Supreme Court Act 1935 (WA), s 37(1)

Result:

Appeal dismissed
Cross-appeal dismissed

Category: B

Representation:

Counsel:

First Appellant              :     Mr J R Brooksby
Second Appellant          :     Mr J R Brooksby
Respondent:     Mr B L Nugawela

Solicitors:

First Appellant              :     Greenland Brooksby
Second Appellant          :     Greenland Brooksby
Respondent:     Doray Solicitors

Case(s) referred to in judgment(s):

Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
Dell v Dalton (1991) 23 NSWLR 528
Dobb v Hacket (1993) 10 WAR 532
House v The King (1936) 55 CLR 499
Marsland v Andjelic (1993) 31 NSWLR 162
Messiter v Hutchinson (1987) 10 NSWLR 525
Murray River North v Midgley [2006] WASCA 104
R v Gallagher [1998] 2 VR 671
Southgate v Waterford (1990) 21 NSWLR 427
Thomas v Bass [2006] WASCA 59

Case(s) also cited:

Donald Campbell & Co Ltd v Pollack [1927] All ER Rep 1
Heather v Vita Pacific Ltd (1996) 6 Tas R120
Hodi v Kelly [2004] WASCA 38
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Lyszkowicz v Colin Earnshaw Homes Pty Ltd [2002] WASCA 205
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Malliaros v Moralis [1991] 2 VR 501
Marshall v Lockyer [2006] WASCA 58
Van Velzen v Wagener (1975) 10 SASR 549
Vandeloo v Waltons Ltd [1976] VR 77

WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Den Hoedt v Barwick

Details

AGLC: Den Hoedt v Barwick [2006] WASCA 196
Case: [2006] WASCA 196
Decision Date: 28 SEPTEMBER 2006

CaseChat Overview and Summary

In the case of Den Hoedt v Barwick, the plaintiff, Den Hoedt, brought a claim against the defendants, Barwick and another, for injuries sustained from two separate accidents. The dispute involved whether the defendants' joint offer of a settlement amount, which exceeded the total damages awarded, should have been considered by the court in its exercise of the general discretionary power to award costs. The case was heard and determined in the Supreme Court of Western Australia. The central legal issue revolved around the interpretation of the relevant court rules and the application of the general discretionary power to award costs when the defendants made a joint settlement offer. Specifically, the court had to decide whether the rule in O*24A r*9 Rules of the Supreme Court 1971 (WA) applied to the situation where the defendants were liable severally but not jointly or jointly and severally.

The court's reasoning began with an analysis of the rule in question and its applicability to the joint offer made by the defendants. The court found that the rule did not apply in this context, as the defendants were not jointly or severally liable. Consequently, the Judge was not bound by the defendants' offer and could exercise the general discretionary power to award costs. The court further noted that the defendants had not requested the Judge to consider the offer, which was a relevant factor in the discretionary decision. The court held that the Judge was not obliged to take the offer into account when exercising the general discretionary power.

The court also addressed the plaintiff's cross-appeal concerning the assessment of damages for personal injuries. The plaintiff argued that certain findings of fact were not reasonably open on the evidence. The court examined the evidence and found that the findings were reasonably open. Regarding the award for non-pecuniary damages, the court considered the meaning of "a most extreme case" under Section 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) and concluded that the award was appropriate. The court further interpreted Section 3C(3) of the Act and found that the award was in accordance with the statutory provisions. The final orders of the court included a determination that the Judge's exercise of the general discretionary power was correct and that the assessment of damages was appropriate.

Orders